Steltz v. Shreck

• Decision Date: 06 October 1891
• Citation: 128 N.Y. 263,28 N.E. 510
• Parties: STELTZ v. SHRECK.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 263

28 N.E. 510

STELTZ

v.SHRECK.

Court of Appeals of New York.

Oct. 6, 1891.

Cross-appeals from supreme court, general term, first department.

Action by Maria Steltz against Minnie Shreck for dower. From a judgment affirming a judgment awarding plaintiff dower in an undivided one-half of the land in question, each party appeals. Affirmed.

The land in question was conveyed by deed jointly to William Steltz and defendant Minnie Shreck, who were then husband and wife. Thereafter William Steltz obtained a divorce from defendant because of her adultery. He afterwards married plaintiff, Maria Steltz, and then died. Plaintiff claimed a dower right in the whole of the land, and defendant claimed as surviving tenant by the entirety.

EARL, J., dissenting. 14 N. Y. Supp. 106, affirmed.

Geo. H. Kracht, for plaintiff.

Edward W. S. Johnston, for defendant.

PECKHAM, J.

We agree in this case with the views expressed by the learned judges who delivered the opinions at the special and general terms of the supreme court. 10 N. Y. Supp. 790; 14 N. Y. Supp. 106. The sole question arises out of the decree of divorce which the husband obtained from his first wife on account of her adultery. Did that divorce have any, and, if so, what, effect upon the character of the holding of the real property by the former husband and wife? By the conveyance the husband and wife took an estate as tenants by the entirety. Berties v. Nunan, 92 N. Y. 152;Zorntlein v. Bram, 100 N. Y. 13, 2 N. E. Rep. 388. Such a tenancy differs from all others. In one respect it is like a joint tenancy, in that there is a right of survivorship attached to both, but it is not a joint tenancy in substance or form. Barber v. Harris, 15 Wend. 615;Jackson v. McConnell, 19 Wend. 175; Bertles v. Nunan, supra. It originated in the marital relation, and, although the survivorship presents the greatest formal resemblance to joint tenancy, instead of founding the estate by the entirety upon the notion of joint tenancy, all the authorities refer it to the established effect of a conveyance to husband and wife pretty much independent of any principles which govern other cases. Jackson v. McConnell, supra. At common law, husband and wife were regarded as one person, and a conveyance to them by name was a conveyance in law to but one person. These two real individuals, by reason of this relationship, took the whole of the estate between them, and each was seised of the whole, and not of any undivided portion. They were thus seised of the whole because they were legally but one person. Death separated them, and the survivor still held the whole because he or she had always been seised of the whole, and the person who died had no estate which was descendible or devisable. Being founded upon the marital relation, and upon the legal theory of the absolute oneness of husband and wife, when that unity is broken, not by death, but by a divorce a vinculo, it stands to reason that such termination of the marriage tie must have some effect upon an estate which requires the marriage relation to support its creation. The claim on the part of the counsel for the wife is that it is only necessary the parties should stand in the relation of husband and wife at the time of the conveyance, and at that time the estate vests, and no subsequent divorce can affect an estate which is already vested. But the very question is, what is the character of the estate which became vested by the conveyance? If it were of such kind that nothing but the termination of the marriage by the death of one of the parties could affect the estate conveyed, then, of course, the claim of the counsel is made out; but it is an assumption of the whole case to say that the estate vested was of the character he claims. When the idea upon which the creation of an estate by the entirety depends is considered, it seems to me much the more logical as well as plausible view to say that, as the estate is built upon the unity of husband and wife, it never would exist in the first place but for such unity. Anything that terminates the legal fiction of the unity of two separate persons ought to have an effect upon the estate whose creation depended upon such unity. It would seem as if the continued existence of the estate would naturally depend upon the continued legal unity of the two persons to whom the conveyance was actually made. The survivor takes the whole in case of death, because that event has terminated the marriage, and the consequent unity of person. An absolute divorce terminates the marriage and unity of person just as completely as does death itself, only instead of one, as in the case of death, there are in the case of divorce two survivors of the marriage, and there are from the time of such divorce two living persons in whom the title still remains. It seems to me the logical and natural outcome from such a state of facts is that the tenancy by the entirety is severed, and, a severance having taken place, each takes his or her proportionate share of the property as a tenant in common, without survivorship. It is said that in such case it ought to be a joint tenancy, but I see...